New year, New Accessibility Obligations

Introduction

As more provinces consider implementing proactive accessibility legislation like Ontario’s Accessibility for Ontarians with Disabilities Act, ongoing compliance should be a New Year’s resolution. Employers outside of Ontario and federally regulated employers are not required to comply with the Accessibility for Ontarians with Disabilities Act. However, employees, customers and human rights adjudicators across Canada are increasingly aware of accessibility issues and look to the act for best practice.

Manitoba is in the process of rolling out the Accessibility for Manitobans Act which will affect the private sector from 2018 British Columbia is in the process of rolling out its Accessibility 2024 initiative and Nova Scotia has announced that it too has plans to introduce accessibility legislation.

Obligations for large organisations

From January 1 2016, provincially regulated organisations with 50 or more employees in Ontario face new requirements to promote accessibility in the workplace, including the following:

Steps must be taken to make the hiring process accessible by letting job applicants know before they apply such as in the job posting and when they are selected for an interview that the organisation accommodates applicants with disabilities.

Employees must be advised about the organisation’s policies for supporting employees with disabilities.

Employees who have disabilities must be provided with accessible workplace information (ie, information that they require to do their jobs, information that is generally available to employees such as company policies and information about emergency procedures), on request.

A written process must be developed for creating documented accommodation plans for employees with disabilities, including how an employee can ask for a workplace representative (or in the case of a unionised employee, a union representative) to participate in the accommodation plan process.

A written plan must be provided to employees returning to work from a disability-related absence who require accommodation.

Consideration must be given to the needs of employees with disabilities in performance management, career development and job changes.

The public and employees must be advised that they can obtain any written information and other communications produced by the organisation in an accessible format, on request. For example, the organisation could provide a notice on its website advising individuals as to whom to contact to request accessible information and communications. Organisations should establish an internal process for managing requests and working with individuals to provide information and communications in a manner that is timely and responsive to individual accessibility needs.

Obligations for small organisations

By January 1 2016, provincially regulated organisations with more than one, but fewer than 50 employees in Ontario must have provided training to all employees and volunteers on Ontario’s accessibility laws, including the Ontario Human Rights Code. The province has developed and made available free resources for employers about the training.

Small organisations must also ensure that existing public feedback processes consider accessibility. For example, rather than receiving feedback by telephone only, an organisation could revise its policies so that it can also receive feedback by email and in person (for further details please see “How to train your staff on accessibility” and “How to make information accessible”).

Achieving compliance

The Accessibility Directorate of Ontario has increased enforcement of Accessibility for Ontarians with Disabilities Act compliance reporting (for further details please see “Overdue accessibility compliance reports”). In 2015 many organisations received notices inquiring about compliance (for those that have yet to file their online reports) or audit requests, seeking proof of compliance.

Many employers already have processes in place to achieve the same goals as the new accessibility requirements. For example, many employers have already created accommodation plans for employees with disabilities. However, the Accessibility for Ontarians with Disabilities Act goes beyond what most employers already have in place by requiring written evidence that the employer and employee have considered specified procedural issues that arise during the accommodation discussion.

Comment

While the Accessibility for Ontarians with Disabilities Act does not override an organisation’s rights and responsibilities to accommodate to the point of undue hardship under human rights legislation, it is being cited by adjudicators as the minimum standard for accessibility. Employees and customers across Canada are also increasingly aware of their accessibility rights and have heightened expectations for organisations to accommodate disability-related needs. As a result, it is important that all employers including those that do not operate in Ontario keep up to date with the act.

For further information on this topic please contact Jackie VanDerMeulen at Fasken Martineau DuMoulin LLP by telephone (+1 403 261 5350) or by email (jvandermeulen@fasken.com). The Fasken Martineau website can be accessed at http://www.fasken.com.